Thursday, November 21, 2013
"Nuclear" Option Fallout
The "world's greatest deliberative body" will deliberate a little less but will it get more done? Today, Senate Democrats invoked the "nuclear" option, a deviation from Senate practice to allow a bare majority to end debate on judicial and executive nominees. This deviation rejects long-standing practice of requiring sixty votes to end debate (and it's more disreputable twin: the filibuster). While this seems to serve the Democrats' purpose of paving the way for confirmation of the nominees now in the queue, it will doubtlessly be used, and probably expanded, by Republicans in the future.
I am less concerned with partisan tactical advantage and more concerned with the issue of whether this procedural change lead to swifter nominations. Where there's a will, there's a way, but that applies to obstruction as much as to progress. Opponents of a nomination are likely to move their opposition to the committee level or earlier in the process.
The past generation of appellate justice has seen caseload volume outpace judicial resources in an alarming manner. Unwilling to increase the number of federal judgeships to keep pace (or adopt structural reforms to address the issue), the federal courts, particularly the appeals courts, have had to develop internal reforms to manage the volume. But all that aside, the federal judiciary is currently 10% vacant with 18 of 179 circuit and 75 of 667 district judgeships unfilled.
I would love to think that today's change in Senate practice will speed the federal judiciary's return to full strength, but sadly, I suspect it has not ended the fight but merely moved it down the hall. What do you think? Is this a long-overdue procedural reform or a short-sighted departure from tradition?
https://lawprofessors.typepad.com/appellate_advocacy/2013/11/nuclear-option-fallout.html
Here's a link to David Boies and Ted Olson discussing the Senate's latest procedural move re: nominations. Boies says he believes it could lead to greater compromise between the parties. We'll see. http://www.bloomberg.com/video/can-the-senate-nuclear-option-force-compromise-7~ePBzvPTeqtpti0_GNncg.html
Posted by: Thomas Burch | Nov 22, 2013 10:25:47 AM